Posts in US Supreme Court

Bilski Decision Day: All Eyes Turn to Supreme Court on Monday

Yet another day has come and gone without the United States Supreme Court issuing a decision in Bilski v. Kappos. According to the SCOTUS blog, Chief Justice Roberts announced that the Court will have its final opinions on Monday, June 28, 2010, and that the Court’s term will close with the exception of remaining Orders in pending cases. This is widely being interpreted as confirmation that Bilski will be issued on Monday, June 28, 2010, which admittedly seems extraordinarily likely, but call me crazy, I have a strange feeling something odd may be boiling behind the scenes.

Monday June 21, Another No Bilski Day for the Supremes

What makes this “no Bilski day” at the Supreme Court particularly interesting and noteworthy is the fact that the Supreme Court did issue a terrorism and First Amendment decision in Holder v. Humanitarian Law Project today, a decision that many if not most would have thought to be harder and more important than the Bilski case. Given that the Supreme Court has issued a decision in what society as a whole will undoubtedly view as a far more important decision than Bilski, and since Bilski has been on the Supreme Court docket since oral arguments back on November 9, 2009, it seems virtually assured that the decision will slip to the final day of the Court’s 2009 term, or it will be held over.

And the Wait Continues… Bilski… Wait Continues… Bilski…

From the standpoint of appropriate judicial process within our system of government the Bilski case is an easy one. If the Court were predisposed to do what they are supposed to do, a stretch I know, they would exercise judicial restraint and actually only decide the case before them. At this point unless the case is held over because no decision can be reached it seems a virtual certainty that the Supreme Court will say more than they should, which will lead them to create problems that they never envisioned. Saying too much and not appreciating the unforeseen (at least to them) consequences just so happens to be a Supreme Court specialty, at least when it comes to patent law.

June 16, 2010: 30th Anniversary of Diamond v. Chakrabarty

There is some irony that on the day we mark the 30th anniversary of the decision that launched the modern biotechnology industry we are still awaiting a decision on a patentable subject matter case — Bilski v. Kappos. Bilski has the potential to not only kill business methods, but also the software industry, the biotechnology industry and much of the medical innovation we see growing by leaps and bounds. So for today I toast the Supreme Court decision that launched the biotech industry, created millions of jobs and has lead to innumerable cures and treatments. I just hope that tomorrow (or whenever the Supreme Court issues its Bilski decision) it is not all for naught.

Groundhogs Day: Speculating on No Bilski Decision this Term

Last week when I wrote Broken Record, No Bilski for You Today, which was a fun combination of Soup Nazi meets LPs, I dangled the thought that perhaps the Supreme Court would not decide Bilski this term and might hold the case over. I said I refused to speculate at this point, but some of those commenting on that article asked me to engage in the speculation, as did others via e-mail and some that I have encountered in the industry since then. I still think it is unlikely that the Supreme Court will hold Bilski over, just because it is an extraordinarily rare occurrence, but with only two more decision days this term (i.e., Monday June 21 and Monday June 28), it seems appropriate to at least ponder the rare occurrence of the Supreme Court holding a case over, which the Court did in Marbury v. Madison and Brown v. Board of Education.

Broken Record, No Bilski for You Today

Whenever the Supreme Court decides to issue the Bilski decision is for them to know and the rest of us to find out. In the meantime what I can say with great authority, as if I am peering at you from behind a counter and wearing a white apron and using the thickest Arabian accent I can conjure up, is this: No Bilski for you… at least not today!

Bilski Watch: Another No-Bilski Day at the Supreme Court

In what is turning into a broken record, the Supreme Court once again did not issue a decision in Bilski v. Kappos. Perhaps we should be thankful that the Supreme Court is taking so long and treating it as the overwhelmingly important case we know it to be. On the other hand, perhaps we should be afraid that the Supreme Court is giving it so much scrutiny. Let’s face it, the Supreme Court has not done much over the last decade to evidence anything other than glib familiarity and vague understanding of patent law. I sure hope they break with that tradition in Bilski.

Supreme Court Refuses Microsoft Appeal in Alcatel-Lucent Case

Earlier today the United States Supreme Court denied Microsoft Corporation’s petition for writ of certiorari in Lucent Technologies, Inc. v. Gateway, Inc. et al, with Microsoft being among the “et al.” While the Federal Circuit affirmed the validity and infringement aspects of the underlying decision of the United States Federal District Court for the District of Southern California, the Court vacated and remanded the damages portion to the district court for further proceedings because the damages calculation lacked sufficient evidentiary support. Despite the Federal Circuit vacating and remanding of the damages award of $357.69 million Microsoft appealed to the Supreme Court, an appeal that will never happen with the denial of the petition for writ of certiorari.

Another Day Without Bilski Decision, What Does it Mean?

Today the United States Supreme Court issued four decisions, and none of them were Bilski v. Kappos. If you look back at the lag time between oral argument and decision over the last 17 Supreme Court patent decisions the average is 2.82 months. KSR was 5.07 months and as of today Bilski is 6.29 months. Does this mean Bilski will be more earth shattering than KSR, which is the biggest patent decision of at least the last generation?

When Will the Supreme Court Decide Bilski?

Months ago I predicted that the Supreme Court would issue the decision on the day that is least convenient for me. That is what always seems to be the case with big news items. They seem to happen when I am away from my computer and attending to other matters, traveling or teaching. Based on the belief that the decision will issue on either April 19, 20, 21, 26, 27 or 28, my prediction is April 21, 2010. That would be the most awful day for me because of my calendar of events on April 21 and 22. So if you are going to start up an office pool on when Bilski will issue I would beg, borrow and plead for April 21.

How to Effectively But Safely Tell the Story of the Invention

I’m sure some patent litigators will blanch at what I’m suggesting about telling the “story” behind the invention in a patent application because of all the supposed “admissions” that will be made. But most patent litigators haven’t had to endure the frustration we patent prosecutors experience when try to get a “silk purse patent” based on a “sow’s ear description” because there’s no “story” told in the patent application about why the invention is patentable. Also, drafting a “litigation-proof” patent application (if one exists) is meaningless if you can’t get that patent application allowed because the “story” told doesn’t sell the patentability of the invention.

Deciding Bilski on Patentable Subject Matter is Just Plain Wrong

Unfortunately, those who oppose software patents frequently, if not always, want to turn the patentability requirements as they apply to software and business methods into a single step inquiry. They want it all to ride on patentable subject matter, which is a horrible mistake. The majority of the Federal Circuit got it completely wrong in Bilski, and other notable recent decisions. Patentable subject matter is a threshold inquiry and should not be used to weed out an entire class of innovation simply because bad patents could and will issue if the other patentability requirements are not adequately applied. That is taking the “easy” way out and is simply wrong.

Bilski Tea Leaves: Remembering the Lab Corp. Non-decision

It has been just over two months since the Supreme Court heard oral arguments in Bilski v. Kappos, and we likely have at least several more months to wait for a ruling. Notwithstanding, pundits and commentators are certainly trying to figure out what the Supreme Court will do, engaging in thought exercises and gazing into crystal balls. The crystal ball…

Supreme Court Won’t Review CAFC Ruling that 35 USC § 271(f) Doesn’t Apply to Patented Processes

You may recall that I wrote back in September of last year on the case of Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc. See CAFC Says “Patented Invention” Does Not Include Methods .  In Cardiac Pacemakers, all but one member of the en banc Federal Circuit ruled that 35 U.S.C. § 271(f) doesn’t apply to patented processes.  Judge Newman…

Praying the Supremes Get Bilski Right in 2010

It is not at all an overstatement to say the fate of future innovation in the US rests squarely on the Supreme Court getting the Bilski ruling correct. Long ago the manufacturing jobs started leaving and they are gone and not coming back. To the extent that the US has anything other than a service economy it is thanks to intellectual property and intangible assets, and everyone who seriously considers the matter knows that the chief intangible asset for businesses is software.